# Amicus Curiae Brief — Epic Sys. Corp. v. Lewis, 138 S. Ct. 42 (2017) (No. 16-285)

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0699%3A38

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2017

## Text

RECORD

Nos. 16-285, 16-300, 16-30

IN THE

Supreme Court of the Anited States

EPIC SYSTEMS CORPORATION,
Petitioner,
v.
JACOB LEWIS,

Respondent.

ERNST & YOUNG LLLP, ET AL.,

Petitioners,

v.
STEPHEN MORRIS, ET AL.,
Respondents.
NATIONAL LABOR RELATIONS BOARD,

Petitioner,

v.
MURPHY OIL USA, INC., ET AL..,

Respondents.

ON WRITS OF CERTIORARI TO
THE UNITED STATES COURTS OF APPEALS FOR
THE SEVENTH, AND NINTH CIRCUITS

BRIEF OF AMICUS CURIAE
NEW ENGLAND LEGAL FOUNDATION
IN SUPPORT OF THE EMPLOYER PARTIES

Counsel for Amicus Curiae
Benjamin G. Robbins

Counsel of Record

Martin J. Newhouse, President
New England Legal Foundation
150 Lincoln Street,

Boston, Massachusetts 02111-2504
(617) 695-3660

June 16, 2017 benrobbins@nelfonline org

TABLE OF CONTENTS

TABLE OF AUTHORITIES. .............0000:sece0.-2-0-e000s iv
INTEREST OF AMICUS CURIAE ......................-..... 1
SUMMARY OF ARGUMENT...................--.ccceseeeeeeees 2
FEST Re ae ee eS eT 6
I. THE NLRA DOES NOT DISPLACE
THE FAA’S MANDATE TO ENFORCE
CLASS AND COLLECTIVE ACTION
WAIVERS IN EMPLOYMENT
ARBITRATION AGREEMENTS. .................... 6
A. The Starting Point Is The FAA,
Which Requires The Challenging
Party To Show That The NLRA
Clearly Provides Employees With
The Substantive Right To Pursue
Group Legal Action Against
TE AT TN 8
B. The NLRA Was Intended To
Resolve Workplace “Industrial
Disputes” Over Negotiable
“Terms And Conditions Of
Employment,” Not Legal
Disputes Over Rights Of
Employment That Are

Guaranteed By Other Statutes. .......... 10

Group Litigation Is Incompatible

With The NLRA’s Purpose Of
Achieving Industrial Peace

Through Group Negotiation In
I titlicdaniccrnsdinndeentnnsncses 12

Under The Rule of Ejusdem
Generis, Section 7’s Residual
Phrase “Other Concerted
Activities” Simply Means That
Employees Have The Right To
Join Together In The Workplace
For A Common Cause, But
Without Having To Form A
Union Or Engage In Collective

acai creeartdianscsesbaenionmnanade 14

Congress Chose The Phrase

“Concerted Activities,” Not

“Concerted Action,” Indicating

An Intent To Protect The Right

To Engage In Certain Conduct,

Not The Right To Sue.......................... 18

When Understood In Its

Historical Context, The NLRA’s
Protection Of “Concerted

Activities” Simply Meant That It

Was No Longer Illegal For

Employees To Act In Concert To
Address Their Working

REE ET Ce eee 20

ii

IT. NOTHING IN EASTEX V. NLRB
SUGGESTS THAT THE NLRA
OVERRIDES THE FAA’S MANDATE
TO ENFORCE CLASS AND
COLLECTIVE ACTION WAIVERS IN
EMPLOYMENT ARBITRATION
I trdctnscvinccstatnsetictnnmasctinncctonninite 24

Se hiccititinnndisnrornstansineendene snsinincdniinienmnniimiinntia 27

TABLE OF AUTHORITIES

CASES

American Exp. Co. v. Italian Colors Restaurant,

ee Sy I a «cud snicinisnaninianeneiienns 7,8
AT&T Mobility LLC v. Concepcion,

I I ce eenninepeneenintpseienin’ 8, 14
Brooks v. NLRB,

EE ETT is dnsncernipeitandetieninepeanbenennabeniebannies 12

Christopher v. SmithKline Beecham Corp.,
Se TN. IIIT icrecchesctinsnsideaniniieeinsngiontninesspscosenney 15

Circuit City Stores, Inc. v. Adams,
532 U.S. 105 (2001)........ jes i RE eee ee 15

CompuCredit Corp. v. Greenwood,
ii ceitnchemanenioniiibaioa 9,14

Dorsey v. United States,
a sienna 10

Eastex, Inc. v. NLRB,
I ssc censntingtaninianatinn 5, 24, 25

Gilmer v. Interstate/Johnson Lane Corp.,
I a cnaieciontainainias 9

Hoffman Plastic Compounds, Inc. v. NLRB,
es Se ao secnsinniinsiddeinesnncitantasésatinmencesenes 10

Intl Union, U. A. W., A. F. of L., Local 232 v.
Wisconsin Employment Relations Bd.,
II vic. jreccscsnncinncssendinnignanenenencte 20, 23

iv

Jacksonville Bulk Terminals, Inc. v. Int7

Longshoremen’s Ass'n,

ER a See oe RE 21
Natl Woodwork Mfrs. Ass’n v. NLRB,

a snscuincionindeiii 20
NLRB v. Bildisco & Bildisco,

TE 10
NLRB v. Phoenix Mut. Life Ins. Co.,

167 F.2d 968 (7th Cir. 1048). ..........0..cccscccccessceeess 17
NLRB v. SW Gen., Inc.,

A ee ae a 15
NLRB v. Washington Aluminum Co.,

I RI Re oR 17
Shearson/Am. Exp., Inc. v. McMahon,

Ts iscnsthint ckaptinsecsisnemniene oats 8, 9, 11
Yates v. United States,

rE EE ss cccccsceciicecsstesencceiuentnapen 14,17
STATUTES
fe EES a ne eee 18
I tinsiclaitibiictiuiiieiicendia pideeeaiaaieelbiiaiendaiiel passim
al csauienenindenetaie .. 19
BE es ey CD cictntttecsevscescrsctntsccssocnsse 18
I eeunloeriiall 18
a cecal aincicasiteibamieindiciind 19

i ecehigatsiasmsanlani 21

a aiiieaabunianal 22
SLL AE OL 22
I UIE siduestesntodedisoctssckbssasctsemmapseiniceennel passim
SEIDEN DLO OMEN 25
lai ain ct cecinidiabecbemnadiionanelil passim
I i ons sasinkiindbbeniibaininniseinesintnesendees 6
UN os os aindineneeninndiens 19
29 U.S.C. § 201 ef 000. .....cccccseceeess--. ntbighieidadnsdidinlebii 7
ITE Tt TT is dinsinhesondenbccancebicemisbiendadsctbenesibubienies 7
I ihisionedicanseoctvncesoendapebiddundseenssiievaisties 7
I a sitriiiciccscninancossesscessensensedansies 18
Oe ee oe I tatcccccrecccsensicecincsetnnnsntesseses 18

Pub. L. No. 75-718, § 16(b), 52 Stat. 1069 (1938)... 23

OTHER AUTHORITIES

EERSTE ee a ra 7, 23

Robert A. Gorman and Matthew W. Finkin, The

Individual and the Requirement of “Concert”
Under the National Labor Relations Act,

130 U. Pa. L. Rev. 286 (1981)....................0000 13, 23

Charles J. Morris, NLRB Protection in the Nonunion
Workplace: A Glimpse at A General Theory of

Section 7 Conduct,
137 U. Pa. L. Rev. 1673 (1989).................. 13, 16, 17

William B. Rubenstein, 1 Newberg on Class Actions
i a cadiesaconbduneai aunt 23

INTEREST OF AMICUS CURIAE

Amicus curiae New England = Legal
Foundation (“NELF”) seeks to present its views, and
the views of its supporters, on whether, in the case of
an arbitration agreement requiring employees to
arbitrate on an individual basis only, the mandate to
enforce such an agreement under § 2 of the Federal
Arbitration Act (FAA), is overridden by § 7 of the
National Labor Relations Act (NLRA), which
protects an employee’s “right . . . to engage in other
concerted activities for . . . mutual aid or protection.”
29 U.S.C. § 157.}

NELF is a nonpvofit, nonpartisan, public
interest law firm, incorporated in Massachusetts in
1977, and headquartered in Boston. Its membership
consists of corporations, law firms, individuals, and
others who believe in NELF’s mission of promoting
balanced economic growth in New England,
protecting the free enterprise system, and defending
economic rights. NELF’s members and supporters
include both large and small businesses located
primarily in the New England region.

1 Pursuant to Supreme Court Rule 37.6, NELF states that no
counsel for a party authored NELF’s amicus brief in whole or in
part, and no person or entity, other than amicus, made a
monetary contribution to the preparation or submission of the
brief.

Pursuant to Rule 37.3(a), NELF has filed with this brief a
letter of consent from counsel for the NLRB, which is the
petitioner in NLRB v. Murphy Oil, Case No. 16-307. All of the
remaining parties in these consolidated cases have filed with
the Court blanket letters of consent to the filing of amicus
briefs.

NELF is committed to upholding the FAA’s
mandate to enforce class action waivers contained in
valid arbitration agreements. This serves the FAA’s
purpose to enforce arbitration agreements according
to their terms so as to facilitate streamlined
proceedings. NELF is also committed to upholding
the FAA’s mandate with respect to the arbitration of
federal statutory claims, unless the relevant statute
displaces the FAA by providing a nonwaivable right
to pursue group legal action. When the federal
statute at issue, here the NLRA, does not announce
any such substantive right, the class action waiver
should be enforced under the FAA.

In addition to this amicus brief, NELF has
filed many other related amicus briefs in this Court,
arguing for the enforcement of arbitration
agreements according to their terms under the FAA.?

For these and other reasons discussed below,
NELF believes that its brief will assist the Court in
deciding the issue presented in this case.

SUMMARY OF ARGUMENT

At issue is whether the FAA’s mandate to
enforce class and collective action waivers in
employment arbitration agreements is displaced by
§ 7 of the NLRA, which grants employees “the right
. . . to engage in other concerted activities for...
mutual aid or protection.” Nowhere does the text,

2 See DIRECTV, Inc. v. Imburgia, 136 S. Ct. 463 (2015); Am.
Express Co. v. Italian Colors Rest., 133 S. Ct. 2304 (2013);
Oxford Health Plans LLC v. Sutter, 133 S. Ct. 2064 (2013);
AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011); Hail
St. Assocs., L.L.C. v. Mattel, Inc., 552 U.S. 576 (2008); Green
Tree Fin. Corp. v. Bazzle, 539 U.S. 444 (2003).

2

purpose, or history of the NLRA clearly establish
that employees have a substantive right to join
together and sue their employer. Therefore, the
waivers should be enforced.

The employees’ underlying claim is a legal
dispute over their qualification to receive overtime
payments, as provided by the FLSA and state wage
law. This is not an “industrial dispute” over a
negotiable “difference as to wages, hours, or other
working conditions,” as Congress expressly intended
in the NLRA’s statement of purpose. The NRLA was
clearly intended to resolve contractual disputes over
terms of employment, by protecting employees’
rights to organize in the workplace and bargain
collectively with their employers. This has nothing
to do with the resolution of a legal dispute over
rights of employment that are guaranteed by other
statutes. Such rights are not negotiated in the
workplace. Therefore, the underlying statutory
claims here appear to fall outside the NLRA’s
intended scope and should not be enforceable under

the NLRA.

The NLRA was intended to achieve industrial
peace by promoting group negotiation and
compromise in the workplace. This purpose is
incompatible with group litigation in court or in
arbitration. Class actions are inherently coercive,
not cooperative, and they often create the risk of “in
terrorem” settlements. Group legal action is not the
“strength in numbers” that Congress had in mind
when it declared its intent to protect employees’ “full
freedom of association” for the purpose of
“negotiating” and “bargaining” with their employers.

Section 7 of the NLRA enumerates specific
protected concerted activities, followed by the
catchall phrase “other concerted activities.” Under
the rule of ejusdem generis (“of the same kind”),
“other concerted activities” should be defined and
limited by the specific concerted activities that
precede it. Those specific concerted activities
identify certain formal ways in which employees can
organize in the workplace and address working
conditions with their employer. “Other concerted
activities,” then, should only protect various similar
ways in which employees can join together in the
workplace, but without having to form a union or
engage in collective bargaining. Those activities
would have nothing to do with group legal action. To
interpret the phrase so broadly would render § 7’s
list of concerted activities superfluous.

Congress chose the phrase “concerted
activities” in § 7, not “concerted action.” When
Congress wants to protect or proscribe certain
conduct, it generally uses the word “activity,” as it
did here. But when Congress wants to create a right
to sue, it generally uses the word “action,” whether
by itself or in such phrases as “civil action” or “cause
of action.” Similarly, Congress did not create a
private right of action in the NLRA and instead
delegated enforcement powers to the NRLB. It is
unlikely, then, that “other concerted activities” was
intended to include group legal action by employees.

The NLRA should be understood in its
historical context. Before the NLRA’s passage, any
efforts by employees to act in concert, in and around

the workplace, were treated as illegal conspiracies or
combinations in restraint of trade. In the labor-
related statutes preceding the NLRA, Congress used
the phrases “in concert” and “concerted activities” to
begin removing the legal barriers that had prevented
workers from joining forces in the workplace. In a
clean break from the past, the NLRA reversed the
historical meaning of “concerted activities”--i.e.,
legally prohibited group conduct--to legally protected
group conduct. But this had nothing to do with
creating a new right of collective legal action against
employers.

Nothing in Eastex, Inc. v. NLRB, 437 U.S. 556
(1978), suggests that the NLRA creates a
substantive right of group legal action that displaces
the FAA’s mandate to enforce class and collective
action waivers in employment arbitration
agreements. Eastex did not involve the FAA, did not
involve a dispute over the NLRA’s “other concerted
activities” language, and it did not involve any
judicial action taken by employees. Instead, that
case decided the unrelated issue whether the
purpose of certain concerted activity--the
distribution of a union newsletter in the workplace--
satisfied the NLRA’s “other mutual aid or protection”
requirement. The Court held that the concerted
workplace activity at issue served a protected
purpose, even though the newsletter urged
employees to take political action outside the
workplace, concerning issues affecting workers
generally. The Court based its decision largely on
the NLRA’s broad definition of “employee,” which
includes the employees of other employers. None of
this bears on the issue here.

ARGUMENT

THE NLRA DOES NOT DISPLACE THE
FAA’S MANDATE TO ENFORCE CLASS
AND COLLECTIVE ACTION WAIVERS
IN EMPLOYMENT ARBITRATION

AGREEMENTS.

At issue in these consolidated cases is
whether, in the case of an arbitration agreement
that requires employees to arbitrate on an individual
basis only, the mandate to enforce the agreement
under § 2 of the Federal Arbitration Act, 9 U.S.C. § 2
(FAA), is overridden by § 7 of the National Labor
Relations Act (NLRA), which protects an employee’s
“right . . . to engage in other concerted activities for
... other mutual aid or protection... .” 29 U.S.C.
§ 157.3 The NLRA also provides that “[ijt shall be an
unfair labor practice for an employer . . . to interfere
with, restrain, or coerce employees in the exercise of
the rights guaranteed in section [7]... .” 29 U.S.C.

§ 158(a)(1).

The employees here each signed such a pre-
dispute arbitration agreement. They now allege that
they have been wrongfully denied overtime

3 Section 7 of the NLRA provides, in relevant part:

Employees shall have the right to self-
organization, to form, join, or assist labor
organizations, to bargain collectively
through representatives of their own
choosing, and to engage in other concerted
activities for the purpose of collective
bargaining or other mutual aid or protection

29 U.S.C. § 157.

payments under the Fair Labor Standards Act, 29
U.S.C. § 201 et seq. (FLSA), and cognate state wage
laws. Notwithstanding their arbitration
agreements, the employees filed putative class and
collective actions in federal court, invoking both Fed.
R. Civ. P. 23 and the FLSA’s mechanism for a
collective (opt-in) action.

Notably, the Court has already decided that
neither Rule 23 nor the FLSA’s collective action
mechanism overrides the FAA’s mandate to enforce
class action waivers in_ valid arbitration
agreements. Nonetheless, the employees and the
NLRB, which is also a party to these consolidated
cases, argue that employees have a nonwaivable
right to pursue group legal action against their
employers, because it is a form of “other concerted
activity” that is protected under § 7 of the NLRA.

429 U.S.C. § 216(b) (“An action to recover [for] liability . . . may
be maintained against any employer .. . by any one or more
employees for and in behalf of himself or themselves and other
employees similarly situated. No employee shall be a party
plaintiff to amy such action unless he gives his consent in
writing to become such a party and such consent is filed in the
court in which such action is brought.”)

5 See American Exp. Co. v. Italian Colors Restaurant, 133 S. Ct.
2304, 2309 (2013) (“Nor does congressional approval of Rule 23
establish an entitlement to class proceedings for the vindication
of statutory rights.”); id. at 2311 (“In Gilmer [v.
Interstate/Johnson Lane Corp., 500 U.S. 20 (1991)] ..., we
had no qualms in enforcing a class waiver in an arbitration
agreement even though the federal statute at issue, the Age
Discrimination in Employment Act[,] [which incorporates the
FLSA’s procedures at 29 U.S.C. § 626(b)] expressly permitted
collective actions.”).

A. The Starting Point Is The FAA,
Which Requires The Challenging
Party To Show That The NLRA
Clearly Provides Employees With
The Substantive Right To Pursue
Group Legal Action Against Their
Employer.

“The [FAA] provides the starting point for
answering the questions raised in this case.”
Shearson/Am, Exp., Inc. v. McMahon, 482 U.S. 220,
225 (1987) (first considering FAA’s mandate and
then concluding that FAA requires enforcement of
agreement to arbitrate disputes under Securities
Exchange Act of 1934 and civil RICO statute). And
the FAA requires the enforcement of a class action
waiver that is contained in a valid arbitration
agreement. This is because “[t]he overarching
purpose of the FAA .. . is to ensure the enforcement
of arbitration agreements according to their terms so
as to facilitate streamlined proceedings.” AT&T
Mobility LLC v. Concepcion, 563 U.S. 333, 344
(2011). Invalidating a class action waiver
“Irjequir[es} the availability of classwide
arbitration[.] [This, in turn,] interferes with
fundamental attributes of arbitration and thus
creates a scheme inconsistent with the FAA.” ZId.

The FAA’s mandate to enforce class action
waivers applies equally in “claims that allege a
violation of a federal statute, unless the FAA’s
mandate has been “overridden by a contrary
congressional command.” American Exp. Co. uv.
Italian Colors Restaurant, 133 S. Ct. 2304, 2309
(2013) (emphasis added) (citation and internal
quotation marks omitted). The burden falls on the

8

party opposing the class action waiver (here, the
employees and the NLRB) to show that the NLRA
displaces the FAA’s mandate to enforce the waiver.
See McMahon, 482 U.S. at 227 (“The burden is on

the party opposing arbitration . . . to show that
Congress intended to preclude a waiver of [the right
to pursue group legal action] . . . for the statutory
rights at issue.”).

To satisfy their burden, the employees and the
NLRB must show that “such an intent [to provide a
nonwaivable right to pursue group legal action] will
be deducible from [the NLRA’s] text or legislative
history, or from an inherent conflict between
arbitration and the [NLRA’s] underlying purposes.”
McMahon, 482 U.S. at 227 (citation and internal
quotation marks omitted). See also Gilmer v.
Interstate/Johnson Lane Corp., 500 U.S. 20, 26
(1991) (discussing same). And if this inquiry raises
any doubts on the matter, “we resolve doubts in
favor of arbitration.” CompuCredit Corp. ov.
Greenwood, 565 U.S. 95, 109 (2012) (Sotomayor, J.,
concurring). See also Gilmer, 500 US. at 26
(“Throughout such an inquiry, it should be kept in
mind that questions of arbitrability must be
addressed with a healthy regard for the federal
policy favoring arbitration.”) (citation and internal
quotation marks omitted).

To displace the FAA’s mandate, then, it is not
enough for the parties to argue that the isolated
residual phrase “other concerted activities,” in § 7 of
the NLRA, could be interpreted to include group
legal action. Instead, the employees and the NLRB
must show that the full text, the purpose, or the
history of the NLRA requires such an interpretation.

9

Whether the employees and the NLRB have
met their burden is an issue of inter-statutory
interpretation that should be decided by this Court,
not the NLRB. At stake is the resolution of a
potential conflict between two federal statutes (the
FAA and the NLRA), as opposed to the resolution of
a purely internal issue of statutory interpretation
under the NLRA, which would have no consequences
on another federal statute. “[W]e have accordingly
never deferred to the [NLRB’s] remedial preferences
where such preferences potentially trench upon
federal statutes and policies unrelated to the NLRA
....” Hoffman Plastic Compounds, Inc. v. NLRB,
535 U.S. 137, 144 (2002) (emphasis added). See also
Dorsey v. United States, 567 U.S. 260, 291 (2012)
(“[W]hen two statutes are capable of co-existence, it
is the duty of the courts, absent a clearly expressed
congressional intention to the contrary, to regard
each as effective.”) (emphasis added) (citation and
internal quotation marks omitted); NLRB v. Bildisco
& Pildisco, 465 U.S. 513, 529 n.9 (1984) (“While the
Board’s interpretation of the NLRA should be given
some deference, the proposition that the Board’s
interpretation of statutes outside its expertise is
likewise to be deferred to is novel.”).

B. The NLRA Was Intended To
Resolve Workplace “Industrial
Disputes” Over Negotiable “Terms
And Conditions Of Employment,”
Not Legal Disputes Over Rights Of
Employment That Are Guaranteed
By Other Statutes.

In their underlying dispute, the employees
allege a violation of their statutory right to receive

10

overtime payments, as provided by the FLSA and
cognate state wage laws. This is a legal dispute over
their qualification to receive wages in an amount
that is guaranteed by statutes other than the NLRA.
This is not an “industrial dispute” over a negotiable
“difference as to wages, hours, or other working
conditions,” as Congress intended those words in the
NLRA. 29 U.S.C. § 151 (“Findings and Declaration
of Policy”). See also McMahon, 482 U.S. at 227
(federal statute’s underlying purpose is a key factor
in determining whether that statute displaces FAA).

In particular, the NLRA’s stated purpose is to
promote “the friendly adjustment of industrial
disputes arising out of differences as to wages, hours,
or other working conditions,” which is achieved “by
protecting the exercise by workers of full freedom of
association” so that they may “negotiat/e] the terms
and conditions of their employment” through
“collective bargaining.” 29 U.S.C. § 151 (emphasis
added).

Clearly, the NRLA was intended to resolve
contractual disputes over negotiable terms of
employment, by protecting employees’ rights to
organize in the workplace and bargain collectively
with their employers. This is “the friendly
adjustment of industrial disputes” that Congress
identified in § 1 of the NLRA.

But this bargaining process in the workplace
has nothing to do with the resolution of a legal
dispute over rights of employment that are
guaranteed by other statutes. A statutorily fixed
right of employment is not determined by

11

“negotiatiion],” “adjustment,” oor “bargaining”
between employees and their employer. 29 U.S.C.
§ 151. That statutory right is therefore not a
negotiable “term” or “condition” of employment
under § 1 of the NLRA. Instead, such a statutory
right has already been “negotiated” by the
legislature on behalf of all employees. The
resolution of a legal dispute arising from a
guaranteed statutory right appears to fall outside
the NLRA’s intended scope.

In short, the underlying claims here do not
arise from contractual rights of employment that
have been bargained for in the workplace. The
claims should therefore not be enforceable under the
NLRA.

C. Group Litigation Is Incompatible
With The NLRA’s Purpose Of
Achieving Industrial Peace Through
Group Negotiation In The Workplace.

It is unlikely that Congress intended the
NLRA to apply to litigation of any kind, let alone
group litigation, because “the underlying purpose of
this statute is industrial peace,” achieved through
negotiation and compromise in the workplace.
Brooks v. NLRB, 348 U.S. 96, 103 (1954). See also
Auciello Iron Works, Inc. v. NLRB, 517 U.S. 781, 785
(1996) (“The object of the National Labor Relations
Act is industrial peace and stability, fostered by
collective-bargaining agreements providing for the
orderly resolution of labor disputes between workers
and employers.”) (emphasis added).

12

The NLRA was intended to protect employees’
right of association in the workplace, not in a
courtroom or in arbitration, so that employees could
negotiate their differences with their employer, not
litigate over them. See Charles J. Morris, NLRB
Protection in the Nonunion Workplace: A Glimpse at
A General Theory of Section 7 Conduct, 137 U. Pa. L.
Rev. 1673, 1683, 1685 (1989) (“The purpose of the
Wagner Act, and therefore the purpose of .. . section
7, was to bring to the workplace a legally protected
right of association . . . [which] . . . would be
comparable to the rights of freedom of speech and
association the first amendment guaranteed to
workers in their political lives.”) (emphasis added);
Robert A. Gorman and Matthew W. Finkin, The
Individual and the Requirement of “Concert” Under
the National Labor Relations Act, 130 U. Pa. L. Rev.
286, 343 (1981) (discussing NLRA’s purpose to
establish “civil rights at the workplace”) (emphasis
added).

Group litigation, then, is far removed from the
NLRA’s purpose of protecting group negotiation in
the workplace. It is inherently coercive, and it is
hardly the cooperative process that Congress had in
mind to promote industrial peace. See Morris,
NLRB Protection in the Nonunion Workplace, 137 U.
Pa. L. Rev. at 1682 (discussing statement of Senator
Wagner that NLRA was intended to establish “a
cooperative relationship between workers and
employers,” achieved through “equality of bargaining
power.”). In particular, a class action is at odds with
the NLRA’s purposes because it creates “the risk of
‘in terrorem’ settlements,” Concepcion, 563 U.S. at
350, due to the sheer size of the plaintiff class and

13

the potential damages at stake, quite apart from the
merits of the underlying dispute. See id.

It is doubtful, then, that a class action is the
“strength in numbers” that Congress had in mind
when it declared its intent to protect employees’ “full
freedom of association” for the purpose of
“negotiating” and “bargaining” their differences with
their employer. 29 U.S.C. § 151. And “we resolve
doubts in favor of arbitration.” CompuCredit, 565
U.S. at 109.

D. Under The Rule of Ejusdem Generis,
Section 7’s Residual Phrase “Other
Concerted Activities” Simply Means
That Employees Have The Right To
Join Together In The Workplace For
A Common Cause, But Without
Having To Form A Union Or Engage
In Collective Bargaining.

In light of the NLRA’s clear statement of
purpose, it is already doubtful that § 7’s “right... to
engage in other concerted activities” would include
group litigation. But that proposition becomes even
more doubtful when the catchall phrase “other
concerted activities” is interpreted properly in its
immediate context, not in isolation from the rest of
§ 7. “(I]t is a “fundamental principle of statutory
construction (and, indeed, of language itself) that the
meaning of a word [or phrase] cannot be determined
in isolation, but must be drawn from the context in
which itis used... .” Yates v. United States, 135 S.
Ct. 1074, 1082 (2015) (citation and internal
quotation marks omitted).

14

In particular, § 7 enumerates specific
concerted activities (self-organization; forming,
joining or assisting labor unions; and collective
bargaining) followed bw the residual phrase “other
concerted activities.” And “[iJt is a commonplace of
statutory construction that the specific governs the
general.” NLRB v. SW Gen., Inc., 137 S. Ct. 929, 941
(2017) (citation and internal punctuation marks
omitted). See also Christopher v. SmithKline
Beecham Corp., 567 U.S. 142, 163 (2012) (“[T]he rule
of ejusdem generis [“of the same kind”} should guide
our interpretation of the catchall phrase, since it
follows a list of specific items.”).

And so the meaning of “other concerted
activities” “should itself be controlled and defined by
reference to the enumerated [concerted activities]
which are recited just before it... .” Circuit City
Stores, Inc. v. Adams, 532 U.S. 105, 115 (2001) (§ 1
of FAA, which exempts “contracts of employment of
seamen, railroad employees, or any other class of
workers engaged in foreign or interstate commerce,”
applies only to other similar transportation workers)
(emphasis added). Simply put, “other concerted
activities” should only protect those concerted

6 Again, § 7 provides, in relevant part:

Employees shall have the right to self-
organization, to form, join, or assist labor
organizations, to bargain collectively
through representatives of their own
choosing, and to engage in other concerted
activities for the purpose of collective
bargaining or other mutual aid or protection

29 U.S.C. § 157.

15

activities that are similar in kind to the concerted
activities listed in § 7. See Circuit City, 532 U.S. at
114—15 (discussing same).

And the specific concerted activities in § 7
(self-organization; forming, joining, and assisting a
union; and collective bargaining through elected
union representatives) identify certain formal ways
in which employees can organize in the workplace
and address working conditions with their employer.
When read together, then, these enumerated
concerted activities describe the various stages of an
industrial democracy in the workplace--“a
congressional intent to create an equality in
bargaining power between the employee and the
employer throughout the entire process of labor
organizing, collective bargaining, and enforcement of
collective-bargaining agreements.” NLRB v. City
Disposal Sys. Inc., 465 U.S. 822, 835 (1984). See also
Morris, NLRB Protection In The Nonunion
Workplace, 137 U. Pa. L. Rev. at 1684 (§ 7 was
intended to achieve a “democracy in the workplace”).

And so the residual phrase “other concerted
activities” should be interpreted to protect various
similar ways in which employees can join together in
the workplace for a common cause, but without
having to form a union or engage in collective
bargaining. That is, “other concerted activities”
protects the associational rights of all employees, not
just unions. “A proper construction [of ‘other
concerted activities’] is that the employees shall have
the right to engage in concerted activities for their
mutual aid or protection even though no union
activity be involved, or collective bargaining be
contemplated.” NLRB v. Phoenix Mut. Life Ins. Co.,

16

167 F.2d 983, 988 (7th Cir. 1948). See also NLRB v.
Washington Aluminum Co., 370 U.S. 9, 14 (1962)
(work stoppage by seven nonunion employees was
“other concerted activity” under § 7: “The seven
employees here were part of a small group of
employees who were wholly unorganized. They had
no bargaining representative and, in fact, no
representative of any kind to present their
grievances to their employer. Under these
circumstances, they had to speak for themselves as
best they could.”); Morris, Protection in the Nonunion
Workplace, 137 U. Pa. L. Rev. at 1687 (phrase “other
concerted activities” protects “one or more employees
attempting to interact or make common cause with
one another regarding a matter relevant to their
working conditions. The process may or may not
come to the attention of the employer, and it may or
may not reach the stage of formal union
organizational activity.”).

Group legal action, however, has nothing to do
with the ways in which employees can join together
in the workplace to address working conditions.
“Had Congress intended the latter all encompassing
meaning, .. . it is hard to see why it would have
needed to include the examples at all.” Yates, 135 S.
Ct. at 1086 (citation and internal quotation marks
omitted). To interpret “other concerted activities” as
broadly as the employees and the NLRB assert
would render superfluous Congress’ careful
enumeration of the concerted activities in § 7. And
“[wle typically use ejusdem generis to ensure that a
general word will not render specific words
meaningless.” Jd. at 1087 (citation and internal
quotation marks omitted).

17

E. Congress Chose The Phrase
“Concerted Activities,” Not
“Concerted Action,” Indicating An
Intent To Protect The Right To
Engage In Certain Conduct, Not The
Right To Sue.

Notably, Congress chose the phrase “concerted
activities” in § 7, which indicates conduct, not
litigation. Congress did not use the phrase
“concerted action,” which could include litigation.

In particular, when Congress wants to protect
or proscribe certain conduct, it generally uses the
word “activity,” as it has done here.? But when
Congress wants to create a right to sue, it generally
uses the word “action,” whether by itself or in such
phrases as “civil action” or “cause of action.”® And in
some instances, Congress has used both words--
“activity” and “action”--in the same statutory section,
precisely to distinguish between the conduct that is
being regulated (the “activity”) and the right to sue

7 See, e.g. 18 U.S.C. § 1962(a) (“Prohibited Activities”) (RICO
statute proscribes conduct related to “racketeering activity”)
(emphasis added); 8 U.S.C. § 1182(a)(3)(B) (“Terrorist
activities”) (prohibiting issuance of visas to anyone engaged in
“terrorist activities”) (emphasis added).

8 See, eg., 42 U.S.C. § 2000e-5(f)(1) (“a civil action may be
brought against the [employer]” for workplace discrimination)
(emphasis added); 15 U.S.C. § 78u-6(h)(1)(B)G) (“Cause of
action”) (Dodd-Frank whistleblower “may bring an action” for
retaliatory employment decision) (emphasis added); 42 U.S.C.
§ 3613(a)(1)(A) (“Civil Action”) (“An aggrieved person may
commence a civil action” for discriminatory housing practices)
(emphasis added).

18

over that regulated conduct (the “action”).2 In short,
interpreting the word “activity” to embrace legal
action is inconsistent with Congress’ own use of that
word. It is therefore a strained and unpersuasive
reading of § 7.

This point is reinforced by the fact that the
NLRA does not provide employees with a private
right of action against their employer. Instead,
Congress delegated exclusive enforcement powers to
the NLRB to pursue claims of unfair labor practices.
See 29 U.S.C. § 160(a) (“Powers of Board generally”)
(“The Board is empowered . . . to prevent any person
from engaging in any unfair labor practice ....”). It
is doubtful, then, that Congress would have intended
the term “other concerted activities” to include group
legal action when Congress did not even deem it
necessary to allow employees to sue individually, on
their own behalf.

9 See, eg, 15 U.S.C. § 1125(a)(1)(A)-(B) (“Civil Action”)
(Lanham Act provides “civil action” for unfair competition
through misleading advertising or labeling pertaining to
“goods, services, or commercial activities”) (emphasis added); 28
U.S.C. § 1605(a)(2) (“A foreign state shall not be immune from
the jurisdiction of courts of the United States or of the States in

any case... in which the action is based upon a commercial
activity carried on in the United States ... .”) (emphasis
added).

19

F. When Understood In Its Historical
Context, The NLRA’s Protection Of
“Concerted Activities” Simply Meant
That It Was No Longer ILlegal For
Employees To Act In Concert To
Address Their Working Conditions.

The Court has instructed that the NLRA
should be understood in its historical context, “[so
that] we may, by such an examination, reconstitute
the gamut of values current at the time when the
words were uttered.” Natl Woodwork Mfrs. Ass’n v.
NLRB, 386 U.S. 612, 620 (1967) (quotation and
internal quotation marks omitted).

Before the NLRA’s passage, any concerted
efforts by employees to address working conditions
would have been illegal “merely because they [were]
undertaken by many persons acting in concert.” Int'l
Union, U. A. W., A. F. of L., Local 232 v. Wisconsin
Employment Relations Bd., 336 U.S. 245, 258 (1949)
(emphasis added) (overruled on other grounds by
Lodge 76, Intl Ass’n of Machinists & Aerospace
Workers, AFL-CIO v. Wisconsin Employment
Relations Comm’n, 427 U.S. 132 (1976)).

The NLRA simply reversed the historical
meaning of “concerted activities”--i.ec., legally
prohibited group conduct--to legally protected group
conduct. This had nothing to do with creating a new
right of group legal action and everything to do with
permitting employees to engage in collective
workplace efforts to address the terms and
conditions of their employment.

In the years preceding the NLRA’s passage,

20

employees had been prohibited from acting “in
concert” to address working conditions, such as by
organizing, striking, or picketing. “Thfe] history [of
§ 7] begins in the early days of the labor movement,
when employers [successfully] invoked the common
law doctrines of crimi: ul conspiracy and restraint of
trade to thwart workers’ attempts to unionize.” City
Disposal Sys., 465 U.S. at 834. Any such efforts to
address working conditions, “although lawful if
pursued by a single employee, became unlawful
when pursued through the ‘conspiracy’ of concerted
activity.” Jacksonville Bulk Terminals, Inc. v. Int!
Longshoremen’s Ass'n, 457 U.S. 702, 716 (1982)
(discussing legislative history of Norris-LaGuardia
Act of 1932, a predecessor labor statute to NLRA)
(emphasis added).

In the labor-related statutes that came before
the NLRA, Congress began to remove the legal
barriers that had prevented workers from joining
together, in and around the workplace, to address
their working conditions. To do this, Congress used
the phrases “in concert” and “concerted activities”--
buzzwords of that era that had been associated with
workers’ illegal efforts to combine or conspire in the
workplace--in order to begin reversing the pejorative
meaning of those words.!°

10 “[Congress’] first use of the term “concert” in th[fe labor]
context, came in 1914 with . .. the Clayton Act, which
exempted from the antitrust laws certain types of peaceful
union activities.” City Disposal Sys., 465 U.S. at 834. See also
29 U.S.C. § 52 (Clayton Act prohibits federal courts from
enjoining “any person or persons, whether singly or in concert,

from [organizing, boycotting, striking] . . . or from peaceably
assembling in a lawful manner, and for lawful purposes[.)”)

21

With the NLRA’s enactment in 1935,
Congress made a clean break from the past by
declaring that employees were no longer legally
prohibited from engaging in concerted activities in
the workplace. To the contrary, they now had the
protected legal right to do so. As the Court
explained, not many years after the NLRA’s passage:

The most effective legal weapon
against the struggling labor union
was the doctrine that concerted
activities were conspiracies, and for
that reason illegal. Section 7 of the
Labor Relations Act took this
conspiracy weapon away from the
employer .... No longer can any
state .. . treat otherwise lawful
activities to aid unionization as an
illegal conspiracy merely because
they are undertaken by many persons

(emphasis added).

In 1932, in § 4 of the Norris-LaGuardia Act, Congress again
prohibited federal courts from enjoining employees, “whether
[acting] singly or in concert,” from engaging in various listed
activities, such as participating in a labor organization or a
strike, which occur during a labor dispute. 29 U.S.C. § 104
(emphasis added). The Norris-LaGuardia Act also stated the
broad public policy that “the individual unorganized worker .. .
shall be free from the interference, restraint, or coercion, of
employers . . . in self-organization or in other concerted
activities for the purpose of collective bargaining or other
mutual aid or protection.” 29 U.S.C. § 102 (emphasis added).
See also City Disposal Sys., 465 U.S. at 834-35 (discussing
same). This language, in turn, “was the source of the language
enacted in § 7 [of the NLRA].” Id. at 835.

22

ie ae

acting in concert.

Intl Union, U. A. W., A. F. of L., Local 232, 336 U.S.
at 257-58 (emphasis added).

When viewed in its historical context, then,
“concerted activities” means only that “lawful
individual action should not become unlawful when
engaged in collectively.” Gorman and Finkin, The
Individual and the Requirement of “Concert” Under
the National Labor Relations Act, 130 U. Pa. L. Rev.
at 336. In sum, the NLRA’s deliberate reversal of
the negative historical meaning of “concerted
activities” had nothing to do with creating a new
right of employees to join together and sue their
employer.’ Instead, the NLRA merely removed the
legal barriers that had prevented employees from
joining together in the workplace.

11 In this connection, there was no such thing as a class suit for
damages when the NLRA was enacted in 1935. “It was not
until the promulgation of original Rule 23 and the first Federal
Rules of Civil Procedure in 1938 that law and equity were
merged, and [opt-in] class suits for damages in the United
States first became available... .” William B. Rubenstein, 1
Newberg on Class Actions § 1.13, at 36 (5th ed. 2011).
Similerly, the FLSA’s opt-in collective action provision was not
enacted until 1938. See Pub. L. No. 75-718, § 16(b), 52 Stat.
1069 (1938) (codified at 29 U.S.C. § 216(b)). And, of course, the
“modern [opt-out] class action practice emerged in the 1966
revision of Rule 23.” Ortiz v. Fibreboard Corp., 527 U.S. 815,
833 (1999).

23

II.

NOTHING IN EASTEX V. NLRB SUGGESTS
THAT THE NLRA OVERRIDES THE FAA’S
MANDATE TO ENFORCE CLASS AND
COLLECTIVE ACTION WAIVERS IN
EMPLOYMENT ARBITRATION
AGREEMENTS.

Nothing in Eastex, Inc. v. NLRB, 437 U.S. 556
(1978), suggests that the NLRA creates a
substantive nght of group legal action that displaces
the FAA’s mandate to enforce class and collective
action waivers in employment arbitration
agreements. Eastex did not involve the FAA, did not
concern the NLRA’s “other concerted activities”
language, and it did not involve any judicial action
taken by employees. Instead, that case decided the
unrelated issue whether the purpose of certain
concerted workplace activity constituted “other
mutual aid or protection” under § 7. See 129 U.S.C.
§ 157 (“Employees shall have the right . . . to engage
in other concerted activities for the purpose of
collective bargaining or other mutual aid or
protection ... .”) (emphasis added).

In Eastex, employees wanted to distribute a
union newsletter in the workplace that, among other
things, encouraged employees to write to their state
legislators to oppose incorporation of Texas’ “right-
to-work” statute into the state constitution; criticized
a Presidential veto of an increase in the federal
minimum wage; and urged employees to register to
vote to “defeat our enemies and elect our friends.”
Eastex, 437 U.S. at 558-60. The employer refused to
allow the employees to distribute the newsletter,
asserting that the newsletter was not for their
“mutual aid or protection” because it discussed ways

24

in which employees could “improve their lot as
employees through [political] channels {that were]
outside the immediate employee-employer
relationship.” Jd. at 565.

The Court rejected the employer’s position and
affirmed the NLRB’s decision that the proposed
concerted activity--distribution of the union
newsletter in the workplace--was for the protected
purpose of “mutual aid or protection” under § 7. Id.
at 564-70. The Court based its decision largely on
the NLRA’s broad definition of “employee,” which
“shall include any employee, and shall not be limited
to the employees of a particular employer, unless
this subchapter explicitly states otherwise... .” 29
U.S.C. § 152(3) (emphasis added). The Court
explained that this definition “was intended to
protect employees when they engage in otherwise
proper concerted activities in support of employees of
employers other than their own.” Eastex, 437 U.S. at
564 (emphasis added).

Consistent with this broad statutory definition
of “employee,” the Court held that the NLRA
protected the employees’ concerted activity of
distributing the newsletter in the workplace, even
though the newsletter advocated political activity
taken outside the workplace. Id. at 564-67. The
Court explained that the purpose of that outside
activity was for Eastex employees to act in solidarity
with the rights of fellow employees located
throughout the state of Texas (the “right to work”
statute) and the nation (the federal minimum wage).

Id.

25

To be sure, the Court in Zastex stated, in
passing, that “it has been held [by the NLRB] that
the ‘mutual aid or protection’ clause protects
employees from retaliation by their employers when
they seek to improve working conditions through
resort to administrative and judicial forums... .”
Eastex, 437 U.S. at 565-66. See also id. at 566 n.15
(citing NLRB decisions involving judicial or
administrative action taken by employees).’2 But
this statement is merely dictum to the Court’s
holding that the “mutual aid or protection” clause
can include purposes that are outside the employer's
control, such as the political activity discussed in the
disputed union newsletter. Moreover, the Court
expressly declined to consider whether the cited
NLRB decisions involving judicial or administrative
action would satisfy the “other concerted activities”
requirement. “We do not address here the question
of what may constitute ‘concerted’ activities in this

context.” Jd. at 566 n.15

In short, Kastex does not suggest in any way
that the NLRA displaces the FAA’s mandate to
enforce class and collective waivers in employment
arbitration agreements. Nor does the NLRA contain
a contrary congressional command that overrides the
FAA’s mandate, for all of the reasons that NELF has
discussed above. Therefore, the employees’
arbitration agreements in these consolidated cases
should be enforced according to their terms.

12 Notably, none of the NLRB decisions that the Court cited for
this proposition involved a class or collective action. See

Eastex, 437 U.S. at 566 n.15.

26

For’ the

CONCLUSION
reasons stated above, NELF

respectfully requests that the judgment in the Fifth
Circuit in Murphy Oil should be affirmed, and that
the judgments in the Seventh Circuit in Epic, and in
the Ninth Circuit in Ernst & Young, should be

reversed.

June 16, 2017

Respectfully submitted,
NEW ENGLAND LEGAL FOUNDATION
By its attorneys,

Benjamin G. Robbins

Counsel of Record
Martin J. Newhouse, President
New England Legal Foundation
150 Lincoln Street
Boston, Massachusetts 02111-2504
Telephone: (617) 695-3660
benrobbins@nelfonline.org

27

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0699%3A38. Public record. Not legal advice.